Blog Traffic

December 23, 2006

Shouldn't we be much, much tougher with drunk drivers?

Just in time for the holiday driving season, the AP reports on the latest statistics on nationwide drunken-driving deaths:

The government said 12,945 motorists died in a crash involving a legally drunk driver in 2005, compared with 13,099 in 2004. Alcohol-related fatalities also fell during that span: from 16,919 in 2004 to 16,885 in 2005.

Though this small dip in drunk driving deaths is encouraging, these numbers once again have me wondering about our criminal justice and sentencing priorities. Relatively few persons are killed each year by sex offenders, but over 1,000 persons die each month because of drunk drivers. Nevertheless, despite the fact that lives and personal safety are jeopardized far more by drunk drivers than by sex offenders, legislators continue to rush to get tougher and tougher with sex offenders while failing to try anything new or severe regarding drunk driving sentencing.

Saturday SCOTUS trivia

Regular readers may recall that, when Supreme Court vacancies were all the vogue, I was asking here whether what SCOTUS really needs is a trial judge. At that time, Orin Kerr noted that Charles Whittaker was on the district court for two years in the mid 1950s, then on the Eighth Circuit briefly before serving on the Supreme Court for from 1957 to 1962.

I still find it remarkable that we've now gone nearly half a century without a Justice with any federal district court experience. Moreover, at a law-geek lunch yesterday, the question came up whether any Justice had ever been elevated to the Supreme Court directly from a federal district judgeship. Anyone know the answer?

This year, I think I will try to be more positive by spending my energy on Festivus feats of (intellectual) strength. Specifically, I plan to spend Festivus trying to come up with the best sentencing ideas for the coming year. Readers are welcome and encouraged to celebrate this all-purpose sentencing Festivus by demonstrating feats of (intellectual) strength in the comments.

One interest facet of these developments is that no one appears to be talking about the Cunningham case before the Supreme Court, which concerns Blakely's applicability to California's sentencing system (lots of background here). What I consider most intriguing here is that the relationship between Gov. Schwarzenegger's proposals and Cunningham possibly runs both ways: not only will the Supreme Court's eventual decision in Cunningham possiblyimpact California's reform plans, but California's reform plans might possiblyimpact the Supreme Court's eventual decision in Cunningham.

Reports from the ABA Commission on Effective Criminal Sanctions

As noted by CrimProf here, American Bar Association's Commission on Effective Criminal Sanctions has recently produced a series of reports with recommendations on various topics. This ABA webpage provides more background and links. All the reports are linked here, and they cover:

alternatives to incarceration and conviction

improvements in parole and probation supervision

employment and licensure of convicted persons

access to and use of criminal records for non-law enforcement purposes

representation relating to collateral consequences

training in the exercise of discretion

All the reports make for interesting reads, but sentencing fans should be especially intrigued by Report I on Alternatives to Incarceration, Report II on Improvements in Probation and Parole, and Report VI on Training in the Exercise of Discretion.

Calling out the Sixth Circuit for making a capital mess

A deeply divided Sixth Circuit has been making a mess of death penalty administration in recent years. As discussed here and here, lethal injection litigation developments have brought the issue to a new level of ugliness.

Thus, it's not surprising that Ohio federal District Court Judge Gregory Frost is struggling to figure out applicable law as he faces numerous motions from Ohio death row inmates seeking stays of scheduled executions. What is surprising is Judge Frost's willing to expressly call out the Sixth Circuit in his latest lethal injection opinion (discussed here). Check out this passage from footnote three:

It is the hope of this Court that ... whatever panel entertains the likely appeal of the instant decision will explain its rationale in affirming or reversing this Court.... It would afford lower courts of this Circuit the necessary guidance that has thus far proved curiously elusive.

The bold and italics in this quoted passage come directly from Judge Frost's opinion.

UPDATE: According to OPDI here, the Ohio AG's filed notice of its intent to appeal the Kenneth Biros stay of execution granted yesterday by Judge Frost. Perhaps this will give the Sixth Circuit a chance to fulfil Judge Frost's request for the explanation and guidance that has been so far "curiously elusive."

This year's batch of Bush holiday pardons

Just in time for Festivus, President Bush issued a batch of pardons and one commutation yesterday. This AP story provides all the details, and here are the highlights:

President Bush issued 16 pardons Thursday and commuted the sentence of an Iowa man convicted of drug charges. Six of the federal offenses were drug crimes, while others included bank fraud, mail fraud, the acceptance of a kickback, a false statement on a loan application and conspiracy to defraud the government over taxes.

Seven of the 16 received no prison or jail time, instead getting probation or a reduction in their military pensions. The longest sentence was nine years, for aiding cocaine distribution, followed by a six-year term for conspiracy to possess marijuana.

With this batch, Bush has issued 113 pardons and commuted three sentences in his nearly six years in the White House, according to spokesman Tony Fratto....

Bush remains among the stingiest of postwar presidents on pardons. President Clinton issued 457 in eight years in office. Bush's father, George H. W. Bush, issued 77 in four years. President Reagan issued 406 in eight years, and President Carter issued 563 in four years.

December 21, 2006

Schwarzenegger's plan to reform California's prison problems

As detailed in this extended AP report, California Governor Arnold Schwarzenegger has announced his proposals for reforming his state's sentencing and prison woes. Here are some highlights:

Gov. Arnold Schwarzenegger said Thursday he will seek a review of California's prison sentencing guidelines, a politically risky undertaking that is part of a wide-ranging plan to address the state's burgeoning prison crisis.

The governor also is proposing an $11 billion building program to add space for thousands of additional inmates and changes to the state parole system. Schwarzenegger characterized the state's prisons as in crisis and "in deep need of reform."...

Schwarzenegger proposed a 17-member commission that would include four legislators, the attorney general, the corrections secretary, a judge and representatives of law enforcement and crime victims' groups. They would serve four-year terms. Commissioners would spend their first year examining whether California's mandatory three-year parole period could be safely shortened for some ex-convicts...

Another pillar of Schwarzenegger's reform effort is creating more space for state prison inmates and those being housed in county jails. The prison system is designed for about 100,000 inmates but houses 174,000. Many convicts are being held longer at county jails, overwhelming that system, as well. Schwarzenegger already has implemented an emergency plan to transfer nearly 2,300 inmates to private prisons in other states. He now wants to add 28,000 beds at state prisons and 50,000 at the county level.

Govenor Schwarzenegger's official press release is here, and his office has additional information under these links:

Lethal injection mess hits Ohio again

As reported here at ODPI, U.S. District Court Judge Gregory Frost has followed up his remarkable lethal injection work earlier this month by today granting a stay to Kenneth Biros because of the litigation and questions surrounding questions Ohio's lethal injection protocol. Judge Frost's latest opinion is available at this link. Here is one of many notable passages:

Faced with two different orders by two different panels reaching two different conclusions, this Court is left with the task of determining what the law of this case is. Because neither order provides any reasoning for its outcome, this Court can only conclude that the law of the case is that this Court should evaluate individually and on a case-by-case basis each motion for a preliminary injunction that comes before it. In other words, there is apparently no substantive law of the case as to all intervening plaintiffs here because there is no apparent consistency to the appellate decisions that have arisen from this litigation.

Is it time to seriously consider alternatives to lethal injection?

Over at ODPI, one can find here a notable collection of posts and commentaries in which various folks, responding to the lethal injection brouhaha, have identified various new and old execution procedures that might be explored. Though some of the suggestions are not completely serious, the topic of execution methods is a fascinating story historically. (For anyone interested in a little morbid legal history, check out detailed in discussions here and here about the electric chair, and this discussion of older execution techniques.)

Though this is a topic that can readily turn ugly or inappropriate (and my choice of a graphic here perhaps does not help), I would be grateful for serious input about whether states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection. In Florida and California and elsewhere, the topic right now is how lethal injections can be done better. But would it be more sensible for states to be looking more broadly to, and more closely at, realistic alternatives?

Two more Eighth Circuit reversals of below-guideline sentences

It is an especially rough week for criminal defendants in the Eighth Circuit, as today two different panels reversed two more downward variances from the guidelines in US v. Plaza, No. 05-4035 (8th Cir. Dec. 21, 2006) (available here), and US v. McCormick, No. 06-1716 (8th Cir. Dec. 21, 2006) (available here), As with the pair of similar reversals earlier this week (discussed here), both cases demonstrate the circuits' continued willingness to second-guess the sentencing judgments of district courts and to rely very heavily on the guidelines when engaging in such second-guessing.

NYT adds to chorus calling for Genarlow Wilson to be freed

The New York Times' editorial page today takes up a cause I have been championing this week through this editorial entitled, "Free Genarlow Wilson Now." Here is how it begins:

Genarlow Wilson loves reading mystery novels and can't wait for the next Harry Potter book. The 20-year-old former high school football player and honor student works in a library, the perfect job for a young bookworm. Unfortunately, that is where the good news ends and a genuine horror story of this country's legal system begins. The library in Georgia where Mr. Wilson works is in prison. He is two years into a sentence for engaging in consensual oral sex with a 15-year-old girl at a New Year's Eve party when he was 17. He won't be eligible for parole until he has served 10 years, essentially sacrificing his remaining youth to an obvious miscarriage of justice.

Interestingly, the NYTimes editorial does not call for clemency, as I have been suggesting here and here, but rather notes that Wilson's lawyer is "planning to file a habeas petition seeking his release" and urges "to grant it and expunge his record so that Mr. Wilson can return to his family and his once promising academic career." This makes me further wonder if clemency is even legally available for Wilson under Georgia law, an issue thoughtful raised by an insightful commentor.

If in fact clemency is not even available for Wilson under Georgia law, I think his claims under the Eighth Amendment (and perhaps also Due Process and even Equal Protection) become even stronger. Of course, as detailed here and here, I think Genarlow Wilson's Eighth Amendment claim is pretty strong already.

Virginia internet task force calls for tougher sentences

As detailed in articles here and here, yesterday a group led by Virginia's attorney general studying how to keep the internet safe for kids, the Youth Internet Safety Task Force, produced "a 100-page report that included 25 specific proposals from law-enforcement officials, technology experts, parents and educators who met during the past six months." The full report can be accessed at this link, and here are some of its law enforcement recommendations:

1. Amend Virginia Code §18.2-374.1 to include statutory and mandatory minimum sentences for production and financing of child pornography.

2. Amend Virginia Code §18.2-374.3 to include statutory and mandatory minimum sentences for online solicitation of children. These mandatory minimums should be bifurcated for offenses involving child victims below 15 years of age and those involving children 15 to 18 years of age.

3. Amend Virginia Code §18.2-374.3 to prohibit sexual solicitations of children ages 15-18. The age of the victim and the age of the offender in relation to the victim should be the determining factors for mandatory minimum sentences.

Ugly realities of California's prison politics

This AP article spotlights the troublesome dynamics that surround prison and sentencing reform in California. Here's the lead:

The two former California prisons chiefs, who resigned in quick succession this year, told a federal judge Wednesday they were driven out by the political sway the prison guards' union held on Gov. Arnold Schwarzenegger.

December 20, 2006

How the war on terror impacts the politics of crime

This article from the Washington Post discussing the latest crime statistics from the FBI spotlights ways in which the war on terror seems to be impacting the politics of crime. In the not-too-distant past, any increase in crime rates would usually lead to calls for tougher sentencing laws. But now the new crime data is leading to criticisms of shifting priorities:

A surge in violent crime that began last year accelerated in the first half of 2006, the FBI reported yesterday, providing the clearest signal yet that the historic drop in the U.S. crime rate has ended and is being reversed....

The numbers are certain to increase pressure on the Bush administration, whose detractors say local police concerns have been slighted by the focus on homeland security and counterterrorism. The Justice Department inspector general's office has reported sharp declines in the number of FBI agents and investigations dedicated to traditional crimes since the Sept. 11, 2001, terrorist attacks.

In addition, the International Association of Chiefs of Police says that law enforcement programs at the Justice Department have been cut by more than $2 billion since 2002 and that overall funding for such programs has been reduced to levels of a decade ago. "We've been looking at some pretty discouraging numbers, and we've always been concerned that as funding decreases, crime rates will increase," said Gene Voegtlin, the association's legislative counsel.

James Alan Fox, a criminologist at Northeastern University in Boston who has been critical of the Bush administration's crime-fighting strategies, said the overall rise in violent crime should be expected given dramatic cuts in assistance to local police and simultaneous increases in the population of males in their teens and 20s. "We have many high-crime areas where gangs have made a comeback, where police resources are down and where whatever resources there are have been shifted to anti-terrorism activity," Fox said. "It's robbing Peter, and maybe even murdering Peter, to pay Paul."

Justice Department officials have repeatedly rejected such criticism, arguing that the causes and trajectory of the crime increase is still unclear. Nonetheless, Attorney General Alberto R. Gonzales has launched a series of anti-drug and anti-gang initiatives at Justice, and he acknowledged at a crime conference in Boston last week that local police are struggling with "increased responsibilities" since Sept. 11, 2001.

Latest death penalty doings

As usual, folks interested in keeping up with all the latest death penalty doings should check out all the action at Capital Defense Weekly and Ohio Death Penalty Information and StandDown Texas Project. Most interesting is perhaps this AP story detailing that lawyers for a North Carolina death row inmate scheduled to be executed next month has "asked Gov. Mike Easley on Wednesday to stop the execution so that the method for putting prisoners to death can be studied." Here is more:

Easley should follow the lead of Gov. Jeb Bush of Florida, who stopped executions there after a botched execution took 34 minutes for the prisoner to die, defense attorney Geoffrey Hosford said. A federal judge in California imposed a moratorium in that state after Florida halted its executions. "North Carolina follows the same formula as Florida and California," said Hosford, who represents condemned prisoner Marcus Robinson....

Hosford also complained that North Carolina keeps the qualifications and identities of executioners secret and "whether or not the person has any medical training is a question." Defense lawyers are scheduled to meet with Easley on Jan. 17 to request clemency. Hosford said he intends to discuss the pain issue with Easley and to introduce it in court filings.

A thoughtful variance based on co-defendant disparity

The Claiborne and Rita have many focused on the ugly realities of how circuit courts are applying reasonableness review. But no one should lose sight of all the good post-Booker work still being done in the district courts. Another example this week comes from Judge Avern Cohn in United States v. Presley, No. 00-80756 (ED Mi Dec. 19, 2006) (available here), which involves a resentence following a Booker remand and deals with the issue of co-defendant disparity in sentencing. Though the history of Presley are complicated, this conclusion sums up the ruling:

As discussed above, Presley and Davis were both involved in a large scale cocaine conspiracy involving hundreds of kilograms of cocaine and millions of dollars in cash. Both were tried and both were convicted by the same jury. By happenstance, a small portion of the evidence at their trial was found to be excludable as to Davis but not as to Presley. Accordingly, the Court on remand was to review the overall evidentiary basis for the conviction of Davis to see if that conviction could stand without the excluded evidence. The government had an obligation to see if that case could be made. For reasons known only to the government, it chose not to make the effort and entered into a compromise with Davis which resulted in a significantly lower sentence 18 for him; a "windfall" in the words of the government.

As the Court of Appeals observed in Williams, supra, it would violate the spirit of the guidelines and be particularly inequitable for Davis to receive a 96 month sentence and Presley a 360 month sentence for the same conduct. Booker gives the Court discretion to impose a reasonable sentence sufficient, but no greater than necessary, to comply with the purpose set forth in § 3553(a)(2). The Court is exercising that discretion in a reasoned manner. It is for these reasons that Presley has been sentenced overall to 120 months, the mandatory minimum under Count 1.

Should the prosecutor request clemency for Genarlow Wilson?

I just read this detailed article in Atlanta Magazine,which provides lots of background on Genarlow Wilson's crime and trial that landed him in a Georgia prison for 10 years for consensual oral sex. This passage about David McDade, the elected district attorney who prosecuted Wilson, jumped out at me:

McDade says that he agrees that consensual teenage sex, including oral sex, does not necessarily warrant a decade-long prison sentence, but he insists there were no other options to consider in this case as long as that law remains on the books.

As noted in prior posts (linked here), "that law" requiring 10 years for Genarlow Wilson is no longer "on the books," but the Georgia Supreme Court has not given Wilson any relief (details here).

As I suggested here, Wilson's case cries out for executive clemency and now I think David McDade should be the one leading the call for clemency for Genarlow Wilson. Without clemency, Wilson will surely be challenging his sentence in a federal habeas action. Wouldn't the people of Georgia be better served by helping Wilson get justice through a release than by having the state defend a sentence in federal court that no one thinks is just?

The stunning data on circuit reasonableness decisions

For over a year, and especially as ugly reasonableness patterns emerged, I have been hoping the US Sentencing Commission would start cataloging reasonableness review outcomes and begin analyzing how Booker is being applied at the circuit level. To date, however, the USSC has not provides any comprehensive data or sophisticated analysis of Booker reasonableness review.

Fortunately, Claiborne and Rita, the SCOTUS Booker reasonableness cases, has prompted others to do this analysis. As noted before here, as part of an amicus effort, "NYCDL compiled and analyzed a database of 1,515 post-Booker reasonableness review cases," which documented "that the courts of appeals have affirmed nearly all within- and above-guidelines sentences while reversing nearly all below-guidelines sentences appealed by the government."

In addition, the federal public defenders have done some amazing analysis of the realities and impact of Booker reasonableness review. Their work is available though this great webpage, where one finds this report:

Data on Appellate Review: Now posted on the Booker/Fanfan Resources page are a graph and the data used to prepare it showing a widening gap between the rate of below-guideline sentences imposed in circuits that have adopted a presumption of reasonableness and those that have not (click here); a comprehensive review of court of appeals decisions between December 1, 2005 and November 30, 2006 showing the rates of affirmance and reversal of within, above and below-guideline sentences at the national and circuit levels, as well as a comparison of rates in presumption and non-presumption circuits (click here). Also posted now are transcripts of sentencing hearings in which judges expressed the belief that they could not sentence outside the guideline range (click here).